The ripples still continue to spread from the House of Lords Select Committee’s report on the MCA 2005. Lord Hardie, the Chair of the Committee, is doing the rounds of conferences at the moment – I am looking forward to hearing him speak at the Community Care conference tomorrow. An entirely unscientific survey that I have conducted of responses reveals, I think, a sum total of one comment suggesting that the report had got it wrong (from a care firm director in Shropshire). Interestingly, though, on a proper analysis it seems to me that his comments actually chimed with the findings of the Committee: i.e. that the Act is a sound act but is not being implemented correctly. I would also note that the director’s belief that the Act was being implemented well in Shropshire may – potentially – have something to do with the fact that this is an area covered by the West Midlands Regional DOLS forum whose work has been widely praised (including before the Committee) in terms of driving forward the Act in the area.
Other commentators have been universal in their welcome of the report (if nervous as to the chances of the Committee’s recommendations being implemented). In this regard, I would particularly direct readers to the characteristically thoughtful posts of Lucy Series and Jess Flanagan.
As we know, the Supreme Court decision in Cheshire West and P and Q is coming out tomorrow – I have no insider information to share but I do wonder whether the inordinately long wait we have had to endure since October might possibly be to do with the Supreme Court justices wishing to wait until the report was published before unleashing their conclusions as to the meaning of a deprivation of liberty in the context of the care and support of the incapacitated.
In the meantime, though, both the President and Vice-President of the Court of Protection will be giving evidence today (18 March) before the Justice Select Committee in a one-off evidence session on the work of the Court of Protection. The section in the Committee’s report relating to the Court of Protection was (comparatively) short – and, one suspects, rather shorter than some of the more vocal critics of the court would have wished. This might, in part, have been because the Committee recommended that the Government considered “as a matter of urgency the updating of the Rules of the Court, as recommended by the ad hoc Rules Committee (nearly four years ago) and, as necessary, in light of subsequent changes“. The updating of the COPR would give the opportunity for a number of changes, both big and small, in the practices and procedures of the court, which are increasingly pressing (not least as the COPR now refers to parts of the CPR – in particular in relation to costs – which either no longer exist or, where they do exist, contain provisions that can make no sense when applied to the COPR). It will be interesting to see the extent to which the Justice Select Committee question the two most senior judges in the Court of Protection on this aspect of the House of Lords Select Committee’s report; I also hope that they raise the question of the damaging impact of legal aid cuts upon the ability of incapacitated adults and their family members to access the Court of Protection.